JUDGMENT : Vijay Kumar Vyas, J. 1. Appellants have assailed judgment dated 31.8.1984 rendered by learned Additional District & Sessions Judge, Dausa (Jaipur) in Sessions Case No.16/1982, whereby the court convicted 11 accused persons, including the appellants herein, and sentenced them as follows : Accused appellants of this appeal U/s 147 IPC - One Year’s Rigorous Imprisonment. U/s 323/149 IPC - Three Months’ Rigorous Imprisonment. U/s 325/149 IPC - Two Years’ Rigorous Imprisonment with fine of Rs.100/-; in default of payment thereof, to further undergo Three Months’ Rigorous Imprisonment. U/s 326/149 IPC - Three Years’ Rigorous Imprisonment with fine of Rs.100/-; in default of payment thereof, to further undergo Three Months’ Rigorous Imprisonment. U/s 302 IPC Co-accused Ram Karan and Ram Phool :- Imprisonment for life with fine of Rs.200/-; in default of payment thereof, to further undergo 6 months’ Rigorous Imprisonment. U/s 302/149 IPC – Rest of the accused :- Imprisonment for life with fine of Rs.200/-; in default of payment thereof, to further undergo 6 months’ Rigorous Imprisonment. All the sentences were ordered to run concurrentl 2. Three convicts namely - Ram Karan, Ram Phool and Heta preferred a separate appeal against the above judgment, registered as D.B. Criminal Appeal No.406/1984. Since all the appellants expired, that appeal was dismissed as abated on 26.4.2010. 3. As Girraj, Kishan Lal and Rang Lal, appellants in this appeal have died, this appeal to their extent, stands abated. 4. In brief, facts of the case are that on 20.8.1981 at 11.45 AM, Kajod Mal Gujar (PW-1) submitted a written report (Ex.P-1) at Police Station, Kolwa to the effect that in the morning at 8.00 AM when he was taking his cattle for grazing and crossing through pasture land nearby czkgE.k okyh tehu] Ram Karan, Ram Phool, Girraj, Mangla, Heta, Kishan Lal, Chain Sukh @ Sukh Ram, Kanya, Sanwata, Kajod, Ram Ratan, Rang Lal, Kailash, Mst. Govindi, Anokhi and Janaki were standing in the way, armed with sword, Barchhi and lathies. They attacked upon him. Chain Sukh @ Sukh Ram gave a blow of lathi on his shoulder. On making noise, brother of complainant Ramji Lal, Bahadur, Ram Singh, Jagdish and Gopal came there. They also got many injuries on head, hands, etc. and are lying on the spot as if died. The complainant has some how fled away from there and reporting. Chain Sukh @ Sukh Ram gave a blow of lathi on his shoulder. On making noise, brother of complainant Ramji Lal, Bahadur, Ram Singh, Jagdish and Gopal came there. They also got many injuries on head, hands, etc. and are lying on the spot as if died. The complainant has some how fled away from there and reporting. Head of his brother Ramji Lal was cracked and he is lying unconscious on the spot. On this report, police registered FIR No.45/81. After investigation submitted a charge-sheet against 15 persons out of 16 named in written report (Ex.P-1). Learned trial court framed charges for offence u/s 148 against Ram Karan and Ram Phool, for the offence u/s 147 to rest of all the accused. All 15 accused were also charged for the offences u/s 302/149, 325, 326, 326/149 and 323/149 IPC. Accused denied the charges and claimed for trial. Prosecution examined 13 witnesses. All the accused were examined u/s 313 Cr.P.C. Six witnesses were examined in defence. After hearing both the parties, learned trial court vide judgment dated 31.8.1984 acquitted four accused namely - Mst. Govindi, Anokhi, Janaki and Chain Sukh @ Sukh Ram from all the charges and convicted & sentenced the rest 11 accused as stated herein above. 5. Learned counsel for the appellants submitted that for the same incident, appellants also lodged FIR which was registered as FIR No.44/81 (Ex.D-16), wherein police after investigation filed a charge-sheet against all the five persons namely - Kajod Mal (PW-1), Ram Singh (PW-2), Bahadur Singh (PW-3), Gopal (PW-4) and Jagdish (PW-5) who are alleged to be injured in the instant case. In that cross FIR, Ram Karan, Mangla, Ram Phool, Het Ram, Girraj and Kishan Lal, the appellants, were injured and their injury reports are Ex.D-3 to Ex.D-8, respectively. Het Ram got grievous injury. All others got simple injuries. However, after trial, all the five persons namely - Jagdish, Ram Singh, Bahadur Singh, Gopal and Kajod were acquitted on 13.10.1992. 6. Learned counsel for the appellants submitted that when the appellants were in their land, informant Kajod and others – about 21 persons, entered with their cattle into the land of their possession. They demolished boundary wall about 5-6 foot steps in length of the appellants field and tried to create a new way from the land of the appellants. They started beatings the appellants. They were aggressor. They demolished boundary wall about 5-6 foot steps in length of the appellants field and tried to create a new way from the land of the appellants. They started beatings the appellants. They were aggressor. Appellants tried to stop them in exercise of their right to private defence of the property and they did not exceed their right. In the process, some persons of the appellants side and some persons of the complainant side, got injured. Prosecution has not given any explanation of the injuries received by the appellants whereas, Investigating Officer – Shri Kanhaiya Lal (PW-12) has admitted in his cross examination that of the same incident, a cross FIR No.44/81 was registered and some of the accused in this case, also injured. 7. Learned counsel for the appellants submitted that the FIR alleged to be registered on 20.8.1981 has been forwarded to the Magistrate of the jurisdiction after delay of four days. No explanation for such delay has been given by prosecution and it seems that the FIR (Ex.D-16) has been tampered with and a doctored one. 8. Learned counsel for the appellants submitted that as per site plan (Ex.P-2) of the place of occurrence, the incident took place near the boundary of the agricultural field of the appellants whereas, as per site plan (Ex.D-18) of the incident prepared in cross FIR, the incident took place on the way. Thus, prosecution has tried to change the place of occurrence in both the matters whereas the Investigating Officer – Kanhaiya Lal (PW-12) has admitted that both the incident took place on the same place. 9. Learned counsel for the appellants further submitted that finding of the trial court that treading through and grazing by cattle in open agricultural field is a common practise in villages is perverse and without any foundation. From the evidence adduced by prosecution, it is substantiated that crop was standing in the agricultural field and by demolishing a part of the boundary wall, an effort to create a new way was made by the complainant side. 10. Learned counsel for the appellants submitted that the alleged recovery of Barchhi at the instance of Girraj and the alleged recoveries of lathis at the instance of Ram Phool, Ram Karan, Het Ram Mangaliya and Kishan Lal, do not help the prosecution as the recovered Barchhi and lathis were not found stained with any blood. 10. Learned counsel for the appellants submitted that the alleged recovery of Barchhi at the instance of Girraj and the alleged recoveries of lathis at the instance of Ram Phool, Ram Karan, Het Ram Mangaliya and Kishan Lal, do not help the prosecution as the recovered Barchhi and lathis were not found stained with any blood. It could not be proved that the recovered Barchhi and lathis were used by the appellants in committing the alleged crime. 11. At last, learned counsel for the appellants has submitted in alternate that despite of above submissions, if the court finds any of the appellants guilt of committing any offence, looking to the present age of the appellants and keeping in view of their first offence, the appellants be enlarged on probation and not sent back to jail after a lapse of such a long time. 12. Per contra, learned Public Prosecutor submitted that five eye witnesses are injured as well. Their credibility is on high pedestal. Their testimony is further corroborated by medical opinion rendered by Dr. B.C. Ghosh (PW-7). On the basis of evidence of these witnesses, story of prosecution is well proved. 13. Learned Public Prosecutor has further submitted that though Ram Karan and Ram Phool, who were charged with substantive offence u/s 302 IPC, have died, yet the appellants can be held convicted for the offence u/s 302 read with section 149 IPC. 14. Learned Public Prosecutor submitted that the complainant side of the instant case has not only grievous and simple injuries on many persons but also lost life of one person whereas only few persons of the appellants side have received some simple injuries on their body. It shows that the right to private defence of the property, if any, has been exceeded by the appellants and the findings given by learned trial court deserves to be affirmed. 15. We have given thoughtful consideration to the rival submissions and gone through all the material available on record. 16. Kanhaiya Lal (PW-12) is Investigating Officer of both - this and cross case. He has admitted in cross examination that a cross case No.44 was registered. Ex.D-16 is a FIR of cross case and in that case, he filed a charge-sheet against 21 persons for offences u/s 147, 148, 149, 325 and 323 IPC. Charge-sheet of the cross case is Ex.D-17. He has admitted in cross examination that a cross case No.44 was registered. Ex.D-16 is a FIR of cross case and in that case, he filed a charge-sheet against 21 persons for offences u/s 147, 148, 149, 325 and 323 IPC. Charge-sheet of the cross case is Ex.D-17. It is true that 21 persons constituted an illegal assembly and after demolishing boundary wall, they made assaults on the other side. He also admits that in the cross case, Ram Karan, Mangla, Ram Phool, Het Ram, Girraj and Kishan Lal were injured and their medical examination was conducted. X-ray was conducted for the injuries caused to Het Ram. The instant case and cross case are pertaining to same incident, happened on same time of the same day. He found by his investigation that both the parties assaulted each other on a public way and therefore he charge sheeted both the parties. 17. As per written report (Ex.P-1) of the instant matter, when Kajod (PW-1) was moving along with cattle at about 8.00 AM on 20.8.1981 near czkgE.k okyh tehu] and crossing through the pasture land, the appellants equipped with sword, Barchhi and sticks, en-circled him and attacked. On commotion, his brothers Ramji Lal, Bahadur Singh, Ram Singh, Jagdish and Gopal reached there. They were also beaten by the appellants. As per written report (Ex.D-16) submitted to police by Ram Karan accompanying Ram Phool, Girraj, Mangla, Het Ram and Kishan Lal, on 20.8.1981 at about 8.00 AM, 21 persons, including the complainant and eye witnesses of the instant matter, demolished the boundary wall of their agricultural field. Appellant along with other persons who came for lodging the FIR, went there to desist them and asked why they demolished the boundary wall. All of them made a fatal attack whereby hands of Heta and head of Ram Karan were broken. On perusal of the site plan (Ex.P-2) prepared in the instant matter and the site plan (Ex.D-18) prepared in cross case, it is revealed that on the very day of the incident, when the site was inspected by Investigating Officer, some part of boundary wall of the agricultural field of the appellants was found freshly demolished and the incident of beating took place on a Sawai Chak land, adjoining the demolished boundary wall on its western side. The boundary wall was demolished about 4-5 hands in length. The boundary wall was demolished about 4-5 hands in length. Injured of the instant matter were also found lying there on the site. 18. It reveals from above that assaults were made from both sides on each other, certain persons were injured from both the sides and cross FIRs were registered. Now the genesis of the incident is to be seen and culpability of the appellants is to be examined. 19. Kajod (PW-1) has accepted in cross examination that near the place of incident, a land; namely, czkgE.k okyh tehu] is lying. Litigation with regard to this land is going on. He has admitted that accused also lodged a report against them of the same incident and they have been charge-sheeted and facing trial at Bandikui. That case is being tried against 20 persons. He has further admitted that they were going through vkeka okyk jkLrk which goes through czkgE.k okyh tehu Appellants blocked this way by standing ahead and did not allow to go further. Ram Singh (PW-2) has admitted in cross examination that public way goes through ckeu okyk field. These admissions made by star witnesses of prosecution, indicate possibility of truth in the defence story that the complainant side in the instant matter, about 20-21 persons, tried to enter into the ckeu okyk field which was in possession of the appellants side and tried to create a new way. So far as appellants are concerned, as per written report (Ex.P-1), they were 16 in number and after investigation, police charge-sheeted 15 of them. Ram Narain (PW-11) has stated that this ckeu okyk field is about 65-66 bighas in area. To look after and maintain such a big agricultural field, assembling of 15-16 person from appellants side is a natural phenomena. 20. After going through above evidence, it appears plausible that complainant side of the instant case, entered into the agricultural field namely ckeu okyh tehu of the appellants side and tried to create a new way from within this field and on resistance by the appellants side, the incident of assaulting each other may have taken place. Learned trial court has also held proved that the complainant side entered into ckeu okyk [ksr . But on the pretext of a strange custom, the trial court has not held this act of the complainant party as an illegal attempt to encroach the agricultural field of the appellants side. Learned trial court has also held proved that the complainant side entered into ckeu okyk [ksr . But on the pretext of a strange custom, the trial court has not held this act of the complainant party as an illegal attempt to encroach the agricultural field of the appellants side. Learned trial court has observed, when crop is not standing on the agricultural field, passing through it by villagers and grazing it by cattle, is a common practise in the countryside. Observations of learned trial court are quite absurd and contrary to the facts. As per prosecution, the incident took place in the month of August when no agricultural field remains open and un-cultivated. As per site plan, the crop was standing there. 21. It is un-disputed that both the sides assaulted each other, as a result, Ramji Lal of the complainant side got seriously injured and later on succumbed to death, whereas other persons of both the sides received simple and grievous injuries. Five persons were injured from complainant side and six got injured from the appellants side. Even if the plea of defence is accepted that act of the appellant side was in exercise of right to private defence of property, it appears that after a certain point of time when both sides started scuffling and assaulting each other, the incident turned into a pitched battle where a free fighting took place. 22. In State of Haryana v. Chandvir and others, (1996) 8 SCC 678 , which was a case where injuries suffered by some of the accused in same transaction were not explained by the prosecution, the incident was held to be a free fight and in the circumstances it was held that liability of each accused has to be considered independently. The Supreme Court further held that on facts neither Section 34 nor 149 of the Cr. P.C. can be applied to any of the accused and that the principle ‘falsus in uno falsus in omnibus’ has no application to a criminal trial. 23. In Dwarka Prasad v. State of U.P. (1993) Supp 3 SCC 141, it was held by the Supreme Court that a free fight is that when both the sides mean to fight a pitched battle. 24. A co-ordinate Bench of this court held in Polya & Ors. 23. In Dwarka Prasad v. State of U.P. (1993) Supp 3 SCC 141, it was held by the Supreme Court that a free fight is that when both the sides mean to fight a pitched battle. 24. A co-ordinate Bench of this court held in Polya & Ors. v. State of Rajasthan Thro’ Public Prosecutor, 2011(2) Cr.L.R. (Raj.) 1541, that the question as to who attacks and who defends in such a fight (free fight) is wholly immaterial and depends on the tactics adopted by the rival party. In such cases of mutual fights, both sides can be convicted for their individual acts. The right of private defence is not available to either party in a case of free fight. 25. As per Dr. B.C. Ghosh (PW-7) who conducted postmortem of the dead body of Ramji Lal, found five injuries, including following two head injuries :- (i) Lacerated wound 2” x ?” x bone exposed on anterior part direction over the right parietal region. (ii) Haematoma 5”x3” on the right tempo parietal region. In his opinion, the cause of death of Ramji Lal was due to head injuries as result of comma. 26. Kajod (PW-1) has stated that Ram Phool and Ram Karan, each gave one blow of lathi on the head of Ramji Lal. Ramji Lal became unconscious and fell down. Ram Phool and Ram Karan again gave 2-4 blows of lathis to Ramji Lal while lying on the ground. Ram Singh (PW-2), Bahadur Singh (PW-3), Gopal (PW-4) and Jagdish (PW-5) have also stated that author of the injuries on head of Ramji Lal were Ram Phool and Ram Karan. Both of these two persons are not appellants in the instant appeal. However, it is pertinent to note that both these two assailants have died and a separate appeal preferred by them has since been abated. 27. Jagdish (PW-5) has stated that Heta gave a blow of Dharia on his right leg and Girraj gave a blow of lathi on his head. Sanwata also gave a blow of lathi on left hand. As per injury report (Ex.P-22) which has been proved by Dr. B.C. Ghosh (PW-7), incised wound 4½ “x1½ “ depth 1” on right leg caused by sharp edged weapon and grievous in nature was found. Sanwata also gave a blow of lathi on left hand. As per injury report (Ex.P-22) which has been proved by Dr. B.C. Ghosh (PW-7), incised wound 4½ “x1½ “ depth 1” on right leg caused by sharp edged weapon and grievous in nature was found. Other injury was lacerated wound on the scalp over the right parietal region which was simple in nature and caused by blunt weapon. As per statement of Jagdish (PW-5), the author of the grievous sharp injury found on the right leg was Heta who is also not an appellant in the instant appeal and a separate appeal preferred by him, has been abated due to his death. As per statement of Jagdish (PW- 5), Girraj gave him a blow of lathi on head. The injury on head has been found simple in nature and caused by blunt weapon. Since the appellant Girraj has died and the appeal has abated, no one can be punished for this injury. So far as third injury alleged by Jagdish (PW-5) to be caused by appellant Sanwata is concerned, it is not corroborated by medical evidence. Eye witnesses have also not corroborated this fact that a blow of lathi was given on left hand of Jagdish by appellant Sanwata. 28. Ram Singh (PW-2) has deposed that Mangla and Ram Karan gave blows on his head by lathi and Kailash gave him a blow of lathi on his right hand. As per injury report (Ex.P-23) which is proved by statement of Dr. B.C. Ghosh (PW-7), three injuries were found on the body of Ram Singh. Two injuries on the head were simple in nature caused by blunt weapon, whereas one injury on right arm was grievous due to fracture of humorous bone caused by blunt object. There is no appellant in this appeal by name Mangla and Ram Karan. Therefore, none of the appellants before us can be held guilty for two injuries caused on the head of Ram Singh. So far as third injury, the grievous one, caused by blunt object is concerned, it has been attributed to the appellant Kailash, therefore, appellant Kailash may be held guilty for offence u/s 325 IPC. 29. Bahadur Singh (PW-3) has deposed that when he tried to intervene, Kajod, Ram Phool and Kishan Lal inflicted many injuries on him. Blows were given by lathi. 29. Bahadur Singh (PW-3) has deposed that when he tried to intervene, Kajod, Ram Phool and Kishan Lal inflicted many injuries on him. Blows were given by lathi. A blow of lathi on his head was given by Kajod and two blows of lathi on his back were given by Ram Phool and Kishan Lal. As per injury report (Ex.P-24) which is proved by the statement of Dr. Ghosh (PW-7), three injuries were found on the body of Bahadur Singh – one was on the head and two were on the back. All the three injuries were simple in nature caused by blunt object. Since Ram Phool and Kishan Lal are no more in this world, they cannot be held guilty. The appellant Kajod may be held guilty for the offence u/s 323 IPC. 30. Gopal (PW-4) has deposed that Rang Lal gave a blow of lathi on his head and Heta gave a blow of lathi on his hands. As per injury report (Ex.P-25) which is proved by statement of Dr. Ghosh (PW-7), two injuries were found on the body of Gopal. Both the injuries were on right arm, simple in nature caused by blunt object. Rang Lal and Heta, both are not amongst the appellants before us. Moreover, both have left this world. Therefore, no one from amongst the present appellants, can be held guilty for the injuries caused to Gopal (PW-4). 31. Kajod Mal (PW-1) has deposed that Chain Sukh gave a blow of lathi on his shoulder. As per injury report (Ex.P-26) which is proved by the statement of Dr. Ghosh (PW-7), two abrasions were found on the body of Kajod Mal – one was on left shoulder and another was on right shoulder. Both abrasions were caused by blunt object and were simple in nature. Chain Sukh @ Sukh Ram has been acquitted by the trial court from all the charges and there is no challenge pending before us against this finding. 32. On perusal of formal FIR (Ex.P-3), it reveals that though it was registered on 20.8.1981, yet it was received by the Magistrate of the jurisdiction on 24.8.1981. No doubt, there is delay in sending the FIR to the Magistrate but mere delay, ipso facto, is never taken to be fatal on the part of prosecution. 32. On perusal of formal FIR (Ex.P-3), it reveals that though it was registered on 20.8.1981, yet it was received by the Magistrate of the jurisdiction on 24.8.1981. No doubt, there is delay in sending the FIR to the Magistrate but mere delay, ipso facto, is never taken to be fatal on the part of prosecution. If there is any evidence of tampering with the original one, only then such delay may be considered as fatal. Normally, prosecution is ought to give an explanation of delay. But in the instant matter, we do not find any such evidence which may lead us to doubt that whatever was informed to police, has been doctored or tampered with and the same has not been forwarded to the Magistrate of the area. Therefore, we do not find delay in forwarding the FIR to the local Magistrate has any bearance on the story of prosecution. 33. In the result, appellants Ram Ratan, Sanwata and Kanhiya Lal are acquitted from the charge of offence u/s 147, 323/149, 325/149, 326/149 and 302/149 IPC. Appellant Kailash is acquitted from charge of offence u/s 147, 323/149, 326/149 and 302/149 IPC. Appellant Kajod is acquitted from the charge of offence u/s 147, 325/149, 326/149 and 302/149 IPC. The conviction of appellant Kailash for charge of offence u/s 325/149 is modified to that of section 325 IPC and conviction of appellant Kajod u/s 323/149 IPC is modified to that of section 323 IPC. 34. Appellant Kajod was of 20 years and the appellant Kailash was of 28 years in the year 1984 when their statement u/s 313 Cr.P.C. were recorded by the trial court. By this time, both of them should be around 61 and 52 years old, respectively. During trial and hearing of the appeals, appellant Kailash remained about 15 days and appellant Kajod remained about 01 month and 25 days in custody. It would not be in the interest of justice that after such a prolong period, the aged appellants be asked to undergo further sentence behind the Bars. During trial and hearing of the appeals, appellant Kailash remained about 15 days and appellant Kajod remained about 01 month and 25 days in custody. It would not be in the interest of justice that after such a prolong period, the aged appellants be asked to undergo further sentence behind the Bars. Keeping in view that no other conviction is on record and considering all above aspects of the case, both the appellants – Kailash and Kajod are ordered under the Probation of Offenders Act to be released on probation for a period of two years provided that each of them furnish a bond of Rs.20,000/- with one surety of the similar amount, to the satisfaction of the trial court with the stipulation that they will maintain peace and good conduct during aforesaid period. On breach of any condition, they shall be ready to appear before the court as and when called upon to do so. 35. Keeping, however, in view the provisions of Section 437-A of the Code of Criminal Procedure, all other appellants are directed to forthwith furnish a personal bond in the sum of Rs.20,000/- each, and a surety bond in the like amount, before the Deputy Registrar (Judicial) of this Court, which shall be effective for a period of six months. 36. Thus, The impugned judgment dated 31.8.1984 is set aside. The appeal on behalf of appellants Ram Ratan, Kanhiya Lal and Sanwata is allowed and that of appellants Kailash and Kajod is partly allowed.